Director of Public Prosecutions v Turiaki
[2022] VCC 2310
•14 December 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01345
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HUSSEIN TURIAKI |
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JUDGE: | Karapanagiotidis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 December 2022 | |
DATE OF RULING: | 14 December 2022 | |
CASE MAY BE CITED AS: | DPP v Turiaki | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2310 | |
SENTENCE
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Subject:CRIMINAL LAW – Sentencing
Catchwords: Plea of guilty – Aggravated carjacking – Mandatory sentencing – Special reason not found – Mental health – Youth – Onerous conditions in custody – COVID-19 pandemic – Worboyes – Sentence indication – Guilty plea.
Legislation Cited: Mental Health Act 2014; s 4(1); Sentencing Act 1991; ss 5, 6AAA, 10A; 10AC; 11; 18, 89(4).
Cases Cited:DPP v Hodgson [2019] VSCA 49; DPP v Lombardo [2022] VSCA 204; Fariah v The Queen [2021] VSCA 213; Farmer v The Queen [2020] VSCA 140; Mammoliti v The Queen [2020] VSCA 52; Worboyes v The Queen [2021] VSCA 169.
Sentence:Imprisonment for a period of three years and six months’ with a non-parole period of three years’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M. Keks | Office of Public Prosecutions |
| For the Defendant | Mr J. Mortley | Emma Turnball Lawyers |
HER HONOUR:
1Hussein Turiaki you have pleaded guilty to one charge of aggravated carjacking and to several summary charges. You have agreed to this Court hearing the summary charges of commit indictable offence on bail (Summary Charge 4), contravene bail conduct condition (Summary Charge 5), driving as a learner driver without permit (Summary Charge 6) and careless driving (Summary Charge 13).
Offending
2The full circumstances of your offending are outlined in the summary of prosecution opening of 2 December 2022 (Exhibit A).
3On 18 September 2020, at about 7.00pm, the victim of your offending drove his mother’s white BMW sedan (registration VAU769) to the BP Service Station in Coolaroo. The victim filled his car with petrol and went inside to pay.
4Whilst the victim was inside, you entered the driver’s seat of the vehicle, before exiting it and walking towards the eastern side of the store.
5When the victim returned, he noticed you standing nearby. You followed him as he walked to his vehicle. When he was about two metres away, you said, ‘throw me the keys’. When he was about a metre away from his driver’s door you repeated this, and pulled out a hammer, about 30cm long with a yellow handle, from your jumper.
6You held up the hammer and continued to tell the victim to throw the keys whilst threatening him. In fear, he threw you the keys. You got into the car and drove off onto Pascoe Vale Road. Inside the car was the victim’s mobile phone, driver’s licence and birth certificate.
7At approximately 11.34pm, police were travelling north in Aitken Boulevard, Craigieburn and observed the white BMW belonging to the victim.
8Police recognised the vehicle’s registration plate as being the stolen vehicle and followed behind at a distance of approximately 250 metres on Aitken Boulevard.
9The vehicle picked up in speed, at one point travelling in excess of 90 km/h in a 60 km/h zone before slowing down to the posted speed limit. As the vehicle approached the intersection of Aitken Boulevard and Somerton Road and approached the red light, police observe you activate the right turn signal. Approximately five metres from the intersection, you veered across into the left lane and accelerated into Somerton Road. The vehicle was observed to lose traction and estimated to be travelling in excess of 90km/h as it continued to accelerate on Somerton Road. Police continued to follow you, and observed you drive through a red traffic signal at the intersection of Somerton Road and Magnolia Boulevard. Police then lost sight of the vehicle due to the speed you were travelling. This conduct constitutes the Summary Charge 13, careless driving.
10Other police patrolling the area then observed the vehicle travelling at a fast rate of speed. They followed and observed the vehicle driving up the driveway of an address on Rocklands Rise, where it was ultimately parked.
11At 11.45pm police approached the front door and announced their presence. You attempted to flee but were eventually restrained and arrested.
12Inside the garage of the house was the complainant’s white BMW (registration VAU769). Police observed under the front passenger seat a hammer with a yellow handle. A search of the vehicle located items belonging to the complainant.
13Police asked you about the keys to the vehicle, and you stated the keys might be in a jacket under the stairs. Police located the keys in a jacket a few metres away.
14At the time of your arrest, you were wearing clothing which matched that depicted in the CCTV footage of the offending.
15The complainant subsequently attended to retrieve his vehicle. His belongings were located inside the car, apart from his phone and driver’s licence (which had been located earlier by another witness), and his birth certificate which remained missing.
16At the time of the alleged offending, you were subject to bail conditions imposed on 1 September 2020 by the Broadmeadows Magistrates’ Court. You were to reside at an address on Eucalyptus Place, Meadow Heights. You were also required to abide by a curfew from 10.00pm to 6.00am (Summary Charges 4 and 5). At the time of the alleged offending, you were permitted drive a motor vehicle with appropriate supervision as you were a leaner driver (Summary Charge 6).
Procedural history
17As indicated, you were originally charged and remanded on 18 September 2020. On 28 June 2021 you were committed for trial. I note that no witnesses were called at the committal hearing. On 8 November 2021 you made an application for bail, which I granted on a number of conditions, including judicial monitoring. Since that date, you have attended upon the Court on several occasions and Youth Junction have provided regular updates as to your progress on bail, which was generally positive.
18On 4 October 2022 your case was listed for a sentence indication hearing. After considering all relevant matters, I indicated that the sentence I would likely impose was one not exceeding a period of three years and six months’ imprisonment. I indicated that, on the evidence, I considered that the Category 1 sentencing regime applied in your case and that none of the exceptions were enlivened. I therefore indicated that on a plea I would likely impose the minimum mandatory term. Subsequent to this hearing you accepted the indication and you were arraigned.
19On the plea of this matter Counsel referred to and relied upon submissions and evidence made at both the sentence indication hearing and the plea hearing.
Mandatory sentencing provisions
20It is best to commence these reasons by addressing the mandatory sentencing provisions, given their primacy in your case.
21Aggravated carjacking is a Category 1 offence. Pursuant to s10AC of the Sentencing Act1991 (Vic) (the Act) in sentencing for the offence of aggravated carjacking I must impose a term of imprisonment and fix, under s 11 of the Act, a non-parole period of not less than three years unless I find under s 10A of the Act that a special reason exists. Further, s11(3) of the Act requires that a non-parole period must be at least six months less than the term of the sentence.
22At the sentence indication hearing, on your behalf it was submitted that a special reason exists pursuant to s 10A(2)(c)(i), (ii) and/or (e). In other words, the following submissions were made:
(i)At the time of the commission of the offence, you had impaired mental functioning that was causally linked to the commission of the offence and substantially and materially reduces your culpability; or
(ii)You have impaired mental functioning that would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment; or otherwise,
(iii)‘There are substantial and compelling circumstances that are exceptional and rare and that justify doing so.’
23These provisions have been extensively considered in recent times and I have been guided by the relevant cases.[1] Further, in assessing whether there are substantial and compelling circumstances further direction is provided in the legislation, in particular s10A(2B) of the Act.
[1] DPP v Hodgson [2019] VSCA 49; Farmer v The Queen [2020] VSCA 140; Fariah v The Queen [2021] VSCA 213; DPP v Lombardo [2022] VSCA 204.
24There was a contest between the parties as to whether these provisions were enlivened in your case.
Evidence
25On your behalf, in support of his submissions Mr Mortley relied principally upon the evidence of Carla Lechner. Ms Lechner provided a report of 25 August 2022 and an addendum report of 9 September 2022. She also gave evidence in Court on the sentence indication application on 17 October 2022.
26In her initial report Ms Lechner canvassed your personal history, noting that it was characterised by considerable violence perpetrated by your father. You reported your father ‘used to beat [you] over the dumbest things’, on at least one occasion knocking you out. Drugs made you feel better, ‘I’d forget it all when I took drugs.’ In her discussions with Ms Lechner, your sister confirmed that you had endured ‘childhood trauma, a very toxic dad, violent … a dysfunctional family’.
27In terms of further trauma, you also stated that your cousin was shot dead when you were 21 years of age. You were nearby and witnessed the scene. After this you report taking more drugs. According to Ms Lechner, you experience a number of symptoms of both acute and complex PTSD arising from these, and other, experiences. You have a relevant drug history and you began abusing ice at 20 years of age, with your heaviest use being between the ages of 24-26 years, when you smoked ‘half to one gram a day.’ You reported being prescribed the anti-depressant Avanza whilst in prison but stated ‘I felt like it was draining me’ and stopped taking it. You are not currently on any psychotropic medication.
28The relevant tools she used indicated the presence of symptoms of both PTSD and complex PTSD including, nightmares and hyper-vigilance. You had not experienced startle response in the past month. You stated that these symptoms had ‘mildly’ interfered with your social and intimate relationships. She also diagnosed a stimulant use disorder – in remission.
29You reported to Ms Lechner that at the time of the alleged offending you were ‘high on ice, had no car, no food, no home … I didn’t know what was going on.’
30She considers that a return to custody would not be conducive to your rehabilitation and that your access to treatment services would be limited and she anticipates a downturn in your mood state.
31In her addendum report Ms Lechner provides the following opinions –
(a) There is an indirect link between your symptoms of complex PTSD and your offending that is mediated by your drug use. The combination of depressed negative thinking, poor emotional regulation which is a function of Complex PTSD and drug use led to extremely poor judgement and decision-making.
(b) Persons with PTSD tend to experience heightened alarm and have poor emotional and behavioural regulation on account of a low threshold for arousal and strong sense of self protection and preservation. In general terms, persons suffering complex PTSD invariably find prison detrimental to their mental health as the prison environment is characterized by conflict, threat and abuse, all potential triggers to a resurgence, aggravation or exacerbation of symptoms of the disorder.
32Ms Lechner attended Court and gave further evidence. She confirmed your diagnosis of complex PTSD at the time of her assessment of you in August 2022. She considered that the genesis of your PTSD was childhood trauma and the violence and abuse you had suffered from your father. She explained that PTSD causes disturbances of thoughts and a whole range of other symptoms such as emotional dysregulation, hypervigilance and poor self-perception.
33Ms Lechner considered that you likely suffered from the condition at the time of the alleged offending. She stated that it was not uncommon for people with PTSD to self-medicate with drugs to alleviate their symptoms. The unwanted side-effects however was that they become more impulsive and their judgement and decision making is adversely impaired. At the time of your offending you were at a low ebb in your life, homeless with no family support and full of self-loathing.
34Ms Lechner assessed you in the community when you were more settled. PTSD was still present but you were better able to manage it because of the supports in place and because you stopped using drugs. A return to the prison environment would lead to a decline in your mental health because the environment is very triggering and volatile. It was not clear how much worse your condition would get.
35In cross-examination, Ms Lechner agreed that the symptoms of complex PTSD are variable and that the severity of the symptoms can vary greatly between people. For some it might be debilitating, for others only mild. She stated that there was not a great deal of pharmacological treatment for PTSD. At the time she interviewed you, you were displaying symptoms of complex PTSD but they were not as intense as what they had previously been. In the last month you had experienced upsetting dreams, flashbacks, hypervigilance and you were still engaging in a level of avoidance in accessing memories. She stated that you had only told her minimal details about the offending, noting that it was a sentence indication. She agreed that she could not be certain of what your state of mind was at the time of the offending, given the variability of symptoms and their possible intensity and your significant use of drugs at the time, and that it was difficult to disentangle the effects of these. Drug use would have been a contributing factor to your offending.
36Ms Lechner was aware that you had spent 417 days in custody between September 2020 and November 2021. She interviewed you some months later. You told her that you had found your remand not particularly pleasant. You had been moved around and also placed in the slot. You stated you had found it difficult but she didn’t have any other notes about this. She didn’t discuss with you whether your symptoms of PTSD had worsened or were exacerbated in prison. She hadn’t viewed your Justice Health file for that period. She could describe the usual effects of prison on someone suffering from PTSD, but agreed that she had no information as to how you experienced prison during your remand and how it impacted your mental health. While she maintained that the prison environment would likely cause a deterioration in your symptoms, she also agreed that when she opined that ‘we don’t know how much worse his condition will get’ this involved a degree of speculation.
Consideration
37I accept Ms Lechner’s evidence that you suffer from complex PTSD and that it constitutes a mental impairment for the purpose of the Act.
38Pursuant to s10A(1)(a) of the Act, ‘impaired mental functioning’ means:
(a) a mental illness within the meaning of the Mental Health Act2014 (Vic). Pursuant to s4(1) of this Act, ‘… mental illness is a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory.’ Post-Traumatic Stress Disorder (PTSD) is a mental illness within the meaning of the Mental Health Act 2014 (Vic).
39I accept that your offending is likely to have occurred within the context of your impoverished circumstances at the time, your untreated and undiagnosed condition and your significant drug use. However, on the evidence, I am not satisfied, on balance, that your impaired mental functioning was causally linked to the offending and substantially and materially reduced your culpability. Overall, the detail provided is too limited and general in this respect to permit such a finding.
40Similarly, I accept the prosecution submission that s10A(2)(c)(ii) of the Act is not, on balance, met. While I accept that you are likely to experience a deterioration in your mental health, I am not satisfied that this would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment as required. Ms Lechner’s opinion was clearly based on her assessment of you and her extensive expertise and experience in this area. However, her evidence in this respect was relatively general, and I note it was uniformed by the experiences of your previous lengthy period on remand.
41The last matter to consider is whether ‘there are substantial and compelling circumstances that are exceptional and rare’. The task of determining whether a special reason has been demonstrated under s10A(2)(e) of the Act is an evaluative one for me as the sentencing judge, unaffected by notions of burden of proof.[2]
[2] Fariah v The Queen [2021] VSCA 213.
42In relation to the gravity of the offending, it was submitted on your behalf that it was a lower range example of the offence; no injury was sustained, you brandished the hammer but didn’t attempt to use it and it wasn’t protracted., The reason for your offending is largely unknown, even to you. In contrast, the prosecution submit that it was a serious example. The surrounding circumstances, include the use of a hammer, brazen conduct in a public place, some to reflect upon your conduct and desist and it was committed whilst you were on bail. On my assessment, in all the circumstances, I consider your offending to sit within the lower to middle range of seriousness.
43On your behalf a combination of factors were relied upon, including the following:
(a) Your relative youth, you were 25 at the time of the offending and are now 27 years of age.
(b) Your diagnosis of complex PTSD.
(c) The likely effect of your complex PTSD on your offending and also the likelihood that it will deteriorate in custody and increase the burden of imprisonment, whether or not this meets the independent thresholds of ss10A(2)(c)(i) and (ii) of the Act.
(d) Your plea of guilty, entered during the pandemic thus attracting Worboyes[3] principles.
(e) Your ongoing rehabilitation, as evidenced by your engagement and participation with Youth Junction and your conduct on bail, up until of course recently when you were remanded in relation to further offending.
(f) Your hardship on remand was also relied upon. You served 417 days on remand, impacted by the Covid-19 pandemic. You had been subject to quarantine and deprived family visits. For a total period of six weeks you were held in 24 hour detention, with only up to eight minutes a day out of cell time. The six week period was spread out and usually constituted by three days, with the longest being a week.
[3] Worboyes v The Queen [2021] VSCA 169.
44The prosecution did not dispute a number of the factors above, including your conditions in custody. However, they submitted that when you balance all the mitigatory factors against other matters, such as the seriousness of the offence and the importance of general deterrence, it doesn’t reach the high bar.
45After giving your case very close and careful consideration I am unable to find or be satisfied that, in combination, the factors relied upon amount to substantial and compelling circumstances that are exceptional and rare’ and that justify finding the existence of a ‘special reason.’
46I have given serious consideration to the factors relied upon. As already indicated, I accept your personal history and diagnosis of PTSD. I also accept that you’re entitled to a greater amelioration of sentence in accordance with the Worboyes principles. Further, I have monitored you over a lengthy period of time on bail. I received several reports from Youth Junction as to the efforts you have made to rehabilitate. You engaged consistently and positively. You undertook drug and alcohol counselling. You participated in an intake for a Men’s Behavioural Change Program. You engaged with Youth Junction case management. You also undertook regular supervised urine screens which I received. You continue to have family support and up until recently you were living with your mother and sister in Meadow Heights. While these are important considerations, I do not consider, on the state of the current evidence before me, that they meet the high threshold set out in the legislative regime.
Other relevant sentencing considerations
47Moving on from the mandatory sentencing regime, I must also consider other factors that are relevant to sentencing in your case.
48Your offending is serious and this is reflected in the maximum penalty. The principles of specific and general deterrence, denunciation and community protection are all engaged in sentencing you. You have a criminal history, though it is relatively limited. On 4 April 2014, at the age of 19, you received a community corrections order (CCO) for dishonesty offences, including burglary. On 11 January 2018 you were before the court for driving matters, possession of drugs and breaching bail and received another CCO. You have not previously been sentenced to a term of imprisonment.
49I have already referred to some of your personal circumstances and your history. These were well canvassed by Ms Lechner in her report and your counsel. Briefly, your parents separated when you were around 15 and you have had limited contact with your father since this time. As noted there was a history of violence and dysfunction in the home. You are the second of five children and you report a close connection to your mother and your siblings. You grew up in the northern suburbs. You left school part way through Year 10 and after leaving you worked in carpentry with your cousin for about 12 months. You later completed a TAFE course in cabinet-making and tried a number of different trades. More recently you were working in bricklaying.
50You have suffered some traumatic experiences, as already canvassed, between the ages of 16-20 you smoked cannabis. At the age of 20 you started to abuse methamphetamines, with your heaviest use being in more recent years. It seems that your drug use has also contributed to a decline in your mental health. I take all these matters into account in sentencing you.
51I also take into account your plea of guilty. It demonstrates a willingness on your part to facilitate the course of justice and carries important utilitarian value.. As previously noted, I also take into account your period on remand and the more onerous conditions you endured as a result of the Covid-19 pandemic related restrictions. As I understand it, Covid-19 still impacts the prison system though the situation is fluid and fluctuating.
52As for your prospects of rehabilitation, you were recently remanded for alleged unrelated offending and were returned to custody on 6 December 2022. I initially bailed you on this matter on the 8 November 2021 and for what was nearly a one year period you consistently demonstrated that you were motivated and capable of rehabilitating. I accept that you have the capacity to make positive changes in your life, as demonstrated over this period. I also take into account your relative youth in sentencing you and in also assessing your rehabilitative prospects.
53I was told that notwithstanding your return to custody, you have remained clean from drugs. On release from custody you have ambitions to work, buy a home and start a family. You have family in Perth and Darwin who run their own bricklaying businesses and you plan to move to either state and start afresh, after serving your sentence. I consider you are certainly capable of achieving these goals.
54The Court is required to impose a sentence which reflects just punishment, deterrence, both general and specific, denunciation and rehabilitation.
55As previously stated, my sentencing discretion is constrained by reason of the mandatory sentencing regime that, I have found, applies in your case On the charge of aggravated carjacking I have taken into account the maximum sentence and the mandatory minimum non-parole period as guidelines. I intend to impose a term of imprisonment that represents the minimum mandatory term, to reflect the important mitigating factors in your case and to promote your rehabilitation.[4] I have also taken into account sentencing principles including totality and parsimony in my consideration of the charges.
[4] Mammoliti v The Queen [2020] VSCA 52.
Sentence
56So, Mr Turiaki, if you would like to stand at this stage and I will impose formally the sentences.
(a) On Charge 1, aggravated carjacking, you are convicted and sentenced to a period of three years and six months' imprisonment.
57On the summary charges as follows:
(a) Charge 4, commit indictable offence on bail, you are convicted and sentenced to a period of seven days' imprisonment;
(b) Charge 5, contravene bail condition, you are convicted and sentenced to a period of seven days' imprisonment;
58Charge 1 on the indictment is the base sentence. These other sentences on Summary Charges 4 and 5 will be served concurrently with Charge 1.
59Summary Charge 6, the learner driver charge, and Summary Charge 13, the careless drive charge, which are punishable only by monetary penalties, taking into account the matters I have referred to, including totality, what I propose to do on both those charges is convict you and discharge you.
57. Pursuant to s89(4) of the Act, I will suspend, and I do suspend, your learner's permit, and I will do so for a period of 12 months and that will commence today.
60I make the disposal order which was unopposed.
61
Pursuant to s18 I declare that you have served a total of 424 days in
pre-sentence detention.
62
In your case, Mr Turiaki, where the mandatory sentencing regime applies I must say that there is some difficulty in providing a s6AAA indication. That is not really of concern to you. It is more an intellectual one. Doing the best I can I can indicate that you have certainly received a benefit for your plea of guilty and but for your plea I would have sentenced you to a period of four years and
six months' imprisonment for the charges before the court.
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